Or Bassok (European University Institute – Department of Law) has posted Interpretative Theories as Roadmaps to American Identity (Global Constitutionalism, forthcoming) on SSRN. Here is the abstract:
As long as the American Constitution serves as the focal point of American identity, many constitutional interpretative theories also serve as roadmaps to various visions of American constitutional identity. Using the debate over the constitutionality of the Patient Protection and Affordable Care Act, I expose the identity dimension of various interpretative theories and analyze the differences between the roadmaps offered by them. I argue that according to each of these roadmaps, courts’ authority to review legislation is required in order to protect a certain vision of American constitutional identity even at the price of thwarting Americans’ freedom to pursue their current desires. The conventional framing of interpretative theories as merely techniques to decipher the constitutional text or justifications for the Supreme Court’s countermajoritarian authority to review legislation and the disregard of their identity function is perplexing in view of the centrality of the Constitution to American national identity. I argue that this conventional framing is a result of the current understanding of American constitutional identity in terms of neutrality toward the question of the good. This reading of the Constitution as lacking any form of ideology at its core makes majority preferences the best take of current American identity, leaving constitutional theorists with the mission to justify the Court’s authority to diverge from majority preferences.
Via Larry Solum at Legal Theory Blog, who adds:
Highly recommended, with an intriguing discussing of "identity originalism." Bassok is surely right that some appeals to original meaning (especially outside the academy) are entwined with the narrative and identity functions of the Constitution and the framing era, but I am not convinced that "identity originalism" exists as an approach to constitutional interpretation (as opposed to a motivation for originalist approaches).
Posted at 6:11 AM